People v. Peebles

Appeal from the Circuit Court of Cook County; the Hon. John P.
McGury, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 9, 1984.

Following a jury trial, defendant Eugene Peebles was convicted of theft by deception (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(b)) and sentenced to a term of three years and four months to 10 years' imprisonment. The court ordered that the sentence would run consecutively to defendant's prior five-year sentence for an unrelated theft and conspiracy conviction. On appeal defendant raises the following issues: (1) whether the jury was properly instructed as to the meaning of deception; (2) whether the jury was properly advised of the charges against defendant; (3) whether the trial court erred in not declaring a mistrial on the basis of jury confusion; (4) whether defendant was proven guilty beyond a reasonable doubt; (5) whether the prosecutor's final argument deprived defendant of a fair trial; (6) whether defendant was properly charged; and (7) whether the trial court erred in imposing a consecutive sentence.

The record discloses that defendant, along with his wife, Alberta Peebles, was indicted on 111 counts of theft and one count of conspiracy for acts committed during the period between December 29, 1967, and September 20, 1978. The two co-defendants' cases were severed, and Alberta Peebles was convicted of conspiracy. Her conviction was affirmed by this court in People v. Peebles (1983), 120 Ill. App.3d 376, 457 N.E.2d 1318. Defendant was charged with the theft of the following items of property valuing approximately $130,000 and belonging to the Illinois Department of Public Aid: public aid warrants, authorizations for medical services and authorizations for the purchase of food stamps. The State called seven witnesses to testify and presented extensive documentation, generally by way of stipulation, to show that defendant and his wife created a false impression with the State of Illinois that defendant was not residing with his wife and family during the period charged. A department application for public aid filed by Alberta indicated that defendant had "deserted" his wife. Documentary evidence introduced by the department, however, refuted the above information that was provided by Alberta to the department. Such evidence included defendant's signature card which was used to cash welfare checks at a currency exchange and which listed defendant's residence as that of his wife. Additionally, three unemployment checks, made payable to defendant, listed the residence of defendant's wife and one of the checks had been cashed by Alberta. Other documents, too numerous to specify, showed that defendant had endorsed checks made payable to Alberta; that defendant and Alberta together, maintained bank accounts; applied for a lease; filed a mortgage; filed a tax return and held loans. Finally, a department caseworker testified that in August 1977, upon a visit to Alberta's residence, she noticed a man who resembled the children and when asked about him, Alberta stated that she and her husband had reunited and that the case should be terminated. At that time, Alberta had been receiving a full grant.

I

• 1 Defendant first contends he was denied his right to a fair trial since the jury was not instructed as to the various meanings of the term "deception" as used in section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1). At the instruction conference, defendant asserted that the jury should be given an instruction as to the specific form of deception that the State had charged in the indictment. The defendant then tendered an oral non-IPI instruction which included the definition of deception that defendant claimed the jury was to consider. The State claimed, however, that the form of deception was not an element of the offense of theft and therefore the jury was not required to be instructed as such. The trial court ruled that the jury would be instructed as to the State's tendered Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 13.01A, 13.04 (2d ed. 1981).

The function of instructions is to convey to the jury the correct principles of law applicable to the evidence so the jury can apply the proper legal principles to the facts and arrive at a proper conclusion based on the law and the evidence. Instructions will be modified only where the facts make the uniform instructions inadequate (People v. Dordies (1978), 60 Ill. App.3d 621, 377 N.E.2d 245), and it is within the sound discretion of the trial court whether to give a non-IPI instruction. People v. Moore (1980), 89 Ill. App.3d 202, 411 N.E.2d 579.

(a) Create or confirm another's impression which is false and which the offender does not believe to be true; or

(b) Fail to correct a false impression which the offender previously has created or confirmed * * *."

Deception commonly refers to conduct which has caused another to believe something which is not true. (See Webster's Third New International Dictionary of the English Language 584 (1976).) It appears that the two statutory definitions are sufficiently similar to the common usage of the term so as to allay any fear of jury confusion regarding the type of conduct which would constitute deception in this case. Moreover, it has been held that where a term of common usage is employed in an instruction, there is no need to give an additional instruction defining that term. (People v. McClellan (1978), 62 Ill. App.3d 590, 378 N.E.2d 1221.) Therefore, the trial court did not abuse its discretion in declining to instruct the jury on the various definitions of the term "deception."

II

• 3 Defendant also contends his due process rights were violated because the jury was not advised of the specifics of the 112-count indictment against him. Defendant claims the jury should have been advised of all 112 charges brought against him to insure that the jury would consider only whether defendant was guilty of those offenses. (See Stirone v. United States (1960), 361 U.S. 212, 4 L.Ed.2d 252, 80 S.Ct. 270.) ...

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